114 F.

3d 1024
97 CJ C.A.R. 794

Jose GALLEGOS, Plaintiff-Appellant,

and
Julie Gallegos, Plaintiff,
v.
CITY OF COLORADO SPRINGS, a municipal corporation,
and John
Doe, an unidentified hit-and-run driver, Defendants,
and
Magdalena Santos and Daniel Lofgren, Defendants-Appellees.
No. 96-1298.

United States Court of Appeals,

Tenth Circuit.
May 28, 1997.

Craig Cornish (Donna Dell'Olio on the briefs) of Cornish & Dell'Olio,

Colorado Springs, Colorado, for Plaintiff-Appellant.
Stephen K. Hook, Assistant City Attorney (James G. Colvin II, City
Attorney, with him on the brief), Colorado Springs, Colorado, for
Defendants-Appellees.
Before ANDERSON, TACHA and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.

Appellant Jose Gallegos filed this civil rights action in federal court against the
city of Colorado Springs and Colorado Springs police officers Magdalena
Santos and Daniel Lofgren. Mr. Gallegos alleged Officer Santos and Sergeant
Lofgren deprived him of his rights under the Fourth and Fourteenth
Amendments by seizing his person. The United States District Court for the
District of Colorado entered judgment for the defendants, concluding the
Colorado Springs police officers did not unreasonably seize Mr. Gallegos. Mr.

Gallegos appeals the district court's judgment and we exercise jurisdiction

pursuant to 28 U.S.C. 1291.
I. FACTUAL AND PROCEDURAL BACKGROUND
2

At approximately 1:08 a.m. on May 20, 1992, Officer Santos and Sergeant
Lofgren received a dispatch in their police cruiser concerning a reported
prowler in the area of the intersection of William Avenue and East Cheyenne
Road. The dispatcher informed the officers a resident had heard noises outside,
had seen two people running south on William Avenue, and had "[h]eard a
noise like they were messing with the fence." While in route to the area of the
alleged disturbance, Sergeant Lofgren and Officer Santos received a second
dispatch concerning a report received from another resident of the area. The
second dispatch indicated a man and woman were "yelling and arguing" on
William Avenue, the man was wearing a white T-shirt, and the man appeared
to be drunk.

The officers arrived at William Avenue at approximately 1:15 a.m. Upon their
arrival, they observed Mr. Gallegos walking north on the east sidewalk of
William Avenue. Sergeant Lofgren and Officer Santos parked their police
cruiser and walked toward Mr. Gallegos. As they approached Mr. Gallegos, the
officers noticed he was wearing a gray tank top and smelled of alcohol. Mr.
Gallegos appeared distraught as he was crying and "talking really loudly or
shouting." Both of his hands were over his face and he appeared unsteady on
his feet.

Sergeant Lofgren approached Mr. Gallegos in an effort to determine what was

going on and to ascertain whether Mr. Gallegos had been near the fence that
had been mentioned in the first dispatch report. However, when Sergeant
Lofgren asked Mr. Gallegos what was going on, Mr. Gallegos ignored the
sergeant's question. Sergeant Lofgren then grasped Mr. Gallegos' left arm and
Mr. Gallegos jerked away and proceeded to walk on the sidewalk. Sergeant
Lofgren then grabbed Mr. Gallegos' arm for a second time. In response, Mr.
Gallegos jerked away and exclaimed "[l]eave me the fuck alone."

At that point, Sergeant Lofgren determined, based upon the totality of the
circumstances, including Mr. Gallegos' refusal to stop, probable cause existed
to arrest Mr. Gallegos for interference with a police officer, in violation of the
ordinances of Colorado Springs. Sergeant Lofgren thus called for backup
assistance, using his portable police radio.

At or around the time Sergeant Lofgren was calling for backup assistance, Mr.

At or around the time Sergeant Lofgren was calling for backup assistance, Mr.
Gallegos walked into East Cheyenne Road shouting unrecognizable words. The
officers followed Mr. Gallegos into the road and Sergeant Lofgren grabbed Mr.
Gallegos' shoulder. Mr. Gallegos then jerked away and pivoted and faced the
officers. With his fists clenched at waist level, Mr. Gallegos positioned himself
in a crouched stance, similar to a wrestler's position.

Officer Lofgren reacted to Mr. Gallegos' crouched position by taking a step

back from Mr. Gallegos. However, Officer Santos, fearing for her safety,
stepped toward Mr. Gallegos and applied an arm bar maneuver to Mr. Gallegos'
right arm.1 Upon observing this procedure, Sergeant Lofgren grasped Mr.
Gallegos' left arm and initiated a take-down action to ensure Mr. Gallegos
would not strike Officer Santos with his free arm. After some resistance by Mr.
Gallegos, the officers placed Mr. Gallegos face down on the pavement. As
Sergeant Lofgren reached for his handcuffs, he heard motor vehicles
approaching from about a block away. One vehicle swerved past the parties,
and a split second later, a second vehicle skidded sideways into Officer Santos
and came to a stop on top of Mr. Gallegos.

The vehicle knocked Officer Santos back approximately ten feet. After Officer
Santos regained her balance, she approached the vehicle and pounded on the
passenger window with her flashlight. The vehicle then backed over Mr.
Gallegos and drove away. From the time Sergeant Lofgren and Officer Santos
arrived at William Avenue to the time the vehicle ran over Mr. Gallegos, only
one minute and forty-four seconds elapsed.

Mr. Gallegos sustained serious injuries as a result of being run over by the
unidentified vehicle on May 20, 1992. Mr. Gallegos filed suit in federal court
against Sergeant Lofgren, Officer Santos, the City of Colorado Springs, and
John Doe, a hit-and-run driver, seeking to recover compensatory and punitive
damages. Mr. Gallegos' amended complaint alleged, inter alia, Sergeant
Lofgren and Officer Santos deprived Mr. Gallegos of his Fourth and Fourteenth
Amendment rights by stopping him without reasonable suspicion and by
unlawfully seizing him without probable cause.

10

On a motion for summary judgment, the district court determined the stop of
Mr. Gallegos by Sergeant Lofgren and Officer Santos was supported by
reasonable suspicion.2 However, the court determined there was a genuine
issue of material fact concerning whether Mr. Gallegos was seized without
probable cause and whether Sergeant Lofgren and Officer Santos were entitled
to qualified immunity for their actions.

11

Following a bench trial on the issue of liability, the court determined Mr.

11

Following a bench trial on the issue of liability, the court determined Mr.
Gallegos' Fourth and Fourteenth Amendment rights were not violated because
the seizure of Mr. Gallegos was justified by a "reasonabl[e] perceived threat to
officer safety." Furthermore, to the extent Mr. Gallegos was subjected to an
arrest, the court concluded Sergeant Lofgren and Officer Santos were entitled
to qualified immunity. Following entry of judgment in favor of the defendants,
Mr. Gallegos filed his Notice of Appeal.

II. ISSUES RAISED ON APPEAL

12

Mr. Gallegos raises three issues on appeal: (1) whether Sergeant Lofgren and
Officer Santos violated Mr. Gallegos' Fourth and Fourteenth Amendment rights
by seizing him without reasonable suspicion; (2) whether the seizure of Mr.
Gallegos escalated into an arrest that was not supported by probable cause, thus
violating Mr. Gallegos' Fourth and Fourteenth Amendment rights; and (3) if the
officers seized Mr. Gallegos in violation of his Fourth and Fourteenth
Amendment rights, whether they were entitled to qualified immunity.

III. ANALYSIS
13

A. Was the Initial Stop of Mr. Gallegos Reasonable Under the Fourth
Amendment?

14

The trial court determined the initial stop of Mr. Gallegos by Sergeant Lofgren
and Officer Santos was reasonable under the Fourth Amendment because it was
supported by reasonable suspicion. Mr. Gallegos contests this determination on
appeal. Mr. Gallegos contends the record establishes his Fourth Amendment
rights were violated because Sergeant Lofgren and Officer Santos did not have
a reasonable suspicion that Mr. Gallegos was involved in criminal activity. In
determining whether the officers' actions were reasonable under the Fourth
Amendment, we employ a de novo review. United States v. King, 990 F.2d
1552, 1556 (10th Cir.1993). However, we must accept the district court's
findings of fact unless they are clearly erroneous. See Ornelas v. United States,
--- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

15

The Fourth Amendment protects "[t]he right of the people to be secure ...
against unreasonable searches and seizures."3 U.S. Const. amend. IV. The
purpose of this amendment is "to safeguard the privacy and security of
individuals against arbitrary invasions by governmental officials." Camara v.
Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930
(1967). "Of course, not all police-citizen encounters implicate the Fourth
Amendment." King, 990 F.2d at 1556. Mere police questioning does not

amount to a seizure and " 'law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another
public place.' " Id. at 1556 (quoting Florida v. Bostick, 501 U.S. 429, 434, 111
S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). Generally, a person is not "seized"
for purposes of the Fourth Amendment unless, "considering all the surrounding
circumstances, the police conduct 'would have communicated to a reasonable
person that the person was not free to decline the officers' requests or otherwise
terminate the encounter.' " King, 990 F.2d at 1556 (quoting Bostick, 501 U.S.
at 439, 111 S.Ct. at 2389).
16

Where a police-citizen encounter rises to the level of a seizure within the

meaning of the Fourth Amendment, such seizure must be reasonable to be
valid. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84
L.Ed.2d 605 (1985) (Fourth Amendment prohibits unreasonable seizures).
Formal arrests or seizures that resemble formal arrests must be supported by
probable cause to be reasonable. United States v. Perdue, 8 F.3d 1455, 1461
(10th Cir.1993). However, mere investigatory detentions of persons may
require less than probable cause to be reasonable. In Terry v. Ohio, 392 U.S. 1,
21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the Supreme Court held police
officers can temporarily detain an individual suspected of criminal activity if
the officer can point to "specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion." Terry
stops "constitute such limited intrusions on the personal security of those
detained and are justified by such substantial law enforcement interests that
they may be made on less than probable cause, so long as police have an
articulable basis for suspecting criminal activity." Michigan v. Summers, 452
U.S. 692, 699, 101 S.Ct. 2587, 2592-93, 69 L.Ed.2d 340 (1981).

17

We must conduct a two-step inquiry to determine whether an investigative

detention is reasonable under the Fourth Amendment. King, 990 F.2d at 1557.
First, we must ascertain whether the detention was " 'justified at its inception.' "
Id. (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879.) For a detention to be valid,
the officer must have an articulable suspicion that a detainee has committed or
is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct.
1319, 1324, 75 L.Ed.2d 229 (1983). Neither "inarticulate hunches" nor
"unparticularized suspicion" will suffice to justify an investigatory detention.
See Terry, 392 U.S. at 22, 27, 88 S.Ct. at 1880-81, 1883. However, in
determining the reasonableness of an investigative detention, " 'common sense
and ordinary human experience must govern over rigid criteria.' " United States
v. Walraven, 892 F.2d 972, 975 (10th Cir.1989) (quoting United States v.
Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)). The
Fourth Amendment " 'does not require police officers to close their eyes to

suspicious circumstances.' " Id. at 976 (quoting United States v. Espinosa, 782
F.2d 888, 891 (10th Cir.1986)).
18

The second step in determining the reasonableness of an investigative detention

consists of determining whether the officers' actions are " 'reasonably related in
scope to the circumstances which justified the interference in the first place.' "
King, 990 F.2d at 1557 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879).
In Perdue, we stated:

19 stops must be limited in scope to the justification for the stop. Officers may
Terry
ask the detained individual questions during the Terry stop in order to dispel or
confirm their suspicions, "[b]ut the detainee is not obliged to respond." Since police
officers should not be required to take unnecessary risks in performing their duties,
they are "authorized to take such steps as [are] reasonably necessary to protect their
personal safety and to maintain the status quo during the course of [a Terry ] stop."
An encounter between police and an individual which goes beyond the limits of a
Terry stop, however, may be constitutionally justified only by probable cause or
consent.
20

8 F.3d at 1462 (citations omitted). With these legal principles in mind, we now
turn to the facts of the present case.

21

After thoroughly reviewing the record, we conclude, as did the trial court, the
initial stop of Mr. Gallegos was a Terry investigative detention thus implicating
the Fourth Amendment. To determine if this detention was reasonable, we must
apply the aforementioned two-part test. First, we must decide whether, at the
time of the stop, Sergeant Lofgren and Officer Santos had an articulable
suspicion that Mr. Gallegos had committed or was about to commit a crime.
The record reveals Sergeant Lofgren and Officer Santos were sent to William
Avenue on May 20, 1992 after receiving two dispatches of suspicious activity
occurring in the neighborhood. The first dispatch was a "prowler" report from a
resident who had seen two people running on William Avenue and heard a
noise like someone was "messing with the fence." The second dispatch was a
report from another resident who observed a man in a white T-shirt, who
appeared to be drunk, arguing with a woman.

22

When the officers arrived at William Avenue at 1:15 in the morning, less than
seven minutes after receiving the first dispatch, they observed Mr. Gallegos on
the sidewalk acting in a very unusual fashion. Mr. Gallegos, who was wearing
a gray tank top, was crying and talking loudly to himself. He had both of his

hands over his face and he smelled of alcohol. When Sergeant Lofgren inquired
as to what was going on, Mr. Gallegos did not respond. He appeared distraught.
23

Based on the totality of the circumstances, including the time of night, Mr.
Gallegos' conduct, the odor of alcohol, and the two dispatch reports, we
conclude the officers possessed a reasonable suspicion that Mr. Gallegos was
involved in criminal activity. Thus, the officers acted reasonably in attempting
to detain Mr. Gallegos. This was not a case of police officers arbitrarily
stopping an individual walking down the sidewalk during the middle of the
afternoon. Rather, Sergeant Lofgren and Officer Santos were aware of
articulable and specific facts that justified their attempts to detain Mr. Gallegos.
We believe the officers would have been derelict in their duties if they had
simply ignored Mr. Gallegos and allowed him to proceed. Accordingly, we
conclude the attempted detention of Mr. Gallegos was justified at its
inception. 4

24

Next, we must determine whether the Terry stop was limited in scope to the
justification for the stop. In reviewing the reasonableness of the scope of the
stop, we focus here on the actions of Sergeant Lofgren and Officer Santos
occurring prior to the arm bar maneuver applied by Officer Santos. In section
III.B., infra, in the context of determining whether Mr. Gallegos was arrested,
we will review the reasonableness under the Fourth Amendment of the arm bar
maneuver and all actions occurring subsequent thereto.

25

Sergeant Lofgren and Officer Santos sought to detain Mr. Gallegos to

determine whether he was the prowler a resident had reported to be messing
with a fence and/or the man another resident had reported as being drunk and
yelling at a woman. To make this determination, Sergeant Lofgren initially
asked Mr. Gallegos what was going on. When Mr. Gallegos did not respond to
Sergeant Lofgren's question, Sergeant Lofgren grabbed Mr. Gallegos' left arm.
Mr. Gallegos jerked away and continued walking down the sidewalk.
Thereafter, Sergeant Lofgren grabbed Mr. Gallegos' arm on two more
occasions in an effort to detain him. However, each time, Mr. Gallegos jerked
away from the officer's grasp.

26

We believe Sergeant Lofgren's actions were reasonably related in scope to the

circumstances justifying the stop. Sergeant Lofgren grabbed Mr. Gallegos' arm
in an effort to briefly detain Mr. Gallegos and confirm or dispel his suspicions.
Although Sergeant Lofgren grabbed Mr. Gallegos' arm three separate times, his
actions consisted of a relatively minor application of force that did not exceed
the amount allowable under the circumstances. If anything, Sergeant Lofgren
did not exercise enough force to accomplish the purpose of the detention. Each

time he grabbed Mr. Gallegos' arm, Mr. Gallegos broke free. Moreover, we do
not believe the detention of Mr. Gallegos was a significant restraint on his
liberty. From the time the officers arrived at William Avenue to the time Mr.
Gallegos' assumed the crouched wrestling position, less than two minutes
elapsed. Thus, we conclude the stop of Mr. Gallegos was a valid Terry stop
that did not exceed the scope of its justification.5
27

B. Did the Seizure of Mr. Gallegos Escalate into an Arrest that Was Not
Supported by Probable Cause?

28

Mr. Gallegos contends the officers' actions in taking Mr. Gallegos down in the
street constituted an arrest. According to Mr. Gallegos, the officers lacked
probable cause to arrest him and, therefore, they violated his Fourth
Amendment right to be free from unreasonable seizures.

29

It is well settled that a police-citizen encounter which goes beyond the limits of
a Terry stop is an arrest that must be supported by probable cause or consent to
be valid. Perdue, 8 F.3d at 1462. However, a Terry stop does not automatically
elevate into an arrest where police officers use handcuffs on a suspect or place
him on the ground. Id. at 1463. Police officers are " 'authorized to take such
steps as [are] reasonably necessary to protect their personal safety and to
maintain the status quo during the course of [a Terry ] stop.' " Id. at 1462
(quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84,
83 L.Ed.2d 604 (1985)). At least nine courts of appeals, including this circuit,
have determined the use of "intrusive precautionary measures" (such as
handcuffs or placing a suspect on the ground) during a Terry stop do not
necessarily turn a lawful Terry stop into an arrest under the Fourth
Amendment. Id. at 1463 (setting forth list of circuit authority). The hallmark of
the Fourth Amendment is reasonableness. As long as the precautionary
measures employed by officers during a Terry stop are reasonable, they will be
permitted without a showing of probable cause. See id. In determining whether
the precautionary measures were reasonable, the standard is objective--" 'would
the facts available to the officer at the moment of the seizure ... "warrant a man
of reasonable caution in the belief" that the action taken was appropriate.' "
United States v. McRae, 81 F.3d 1528, 1536 (10th Cir.1996) (quoting Terry,
392 U.S. at 21-22, 88 S.Ct. at 1880).

30

In the present case, we must determine whether the Terry stop escalated into an
arrest following the application of the arm bar maneuver by Officer Santos. The
district court concluded the take-down of Mr. Gallegos was justified by a
"reasonably perceived threat to officer safety." The court did not find Mr.
Gallegos was subjected to an arrest under the Fourth Amendment. We agree.

31

The record reveals that following Sergeant Lofgren's third attempt to grab Mr.
Gallegos' arm, Mr. Gallegos' demeanor and body position changed drastically.
Previously, Mr. Gallegos had been intent on walking down the sidewalk with
his hands covering his face. In a matter of seconds, however, Mr. Gallegos
removed his hands from his face, pivoted toward the officers, and crouched
into a wrestler's position. Mr. Gallegos was yelling and he appeared very angry.
He smelled as if he had been drinking.

32

Based on these objective facts, we believe Officer Santos reasonably believed

her safety was in danger. To gain control of the situation before her or her
partner was harmed, she made a split second decision to apply an arm bar
maneuver to Mr. Gallegos. We cannot say this decision was unreasonable under
the Fourth Amendment. Nor can we say Officer Lofgren's decision to initiate a
take-down was unreasonable. Having witnessed Mr. Gallegos' strange and
aggressive conduct, he now observed his partner, a police officer in field
training, trying to gain control of a man who weighed 200 pounds or more. We
believe Sergeant Lofgren harbored an objectively reasonable belief there was a
serious risk Mr. Gallegos would strike Officer Santos with his free arm. Based
on this belief, Sergeant Lofgren used a reasonable amount of force to bring Mr.
Gallegos face-down on the pavement.

33

Only seconds after Sergeant Lofgren initiated the take-down procedure, Mr.
Gallegos and Officer Santos unfortunately were struck by the hit-and-run
driver. Nevertheless, we find, as did the trial court, that at the time Mr.
Gallegos was injured, the actions taken by Sergeant Lofgren and Officer Santos
were merely those "reasonably necessary to protect their personal safety and to
maintain the status quo during the course of [a Terry ] stop."6 See Perdue, 8
F.3d at 1462 (quoting Hensley, 469 U.S. at 235, 105 S.Ct. at 683-84.) Thus, we
conclude no arrest had taken place at the time Mr. Gallegos was hit by the car.7
Because Mr. Gallegos was not arrested, the officers did not need probable
cause to justify their actions.8

34

C. Are Sergeant Lofgren and Officer Santos Entitled to Qualified Immunity for
their Actions?

35

Because we have determined Mr. Gallegos was not deprived of his rights under
the Fourth and Fourteenth Amendments, we need not address the issue of
qualified immunity.

IV. CONCLUSION
36

Based on the foregoing reasons, we hereby AFFIRM the decision of the district

36

Based on the foregoing reasons, we hereby AFFIRM the decision of the district
court.

The arm bar maneuver consisted of Officer Santos grabbing Mr. Gallegos' right
wrist with her right hand while placing her left hand close to Mr. Gallegos'
shoulder

Mr. Gallegos conceded his municipal liability claim against the City of
Colorado Springs should be dismissed. Accordingly, the district court
dismissed this claim in its summary judgment order

The Fourth Amendment is applicable to the states through the Fourteenth

Amendment. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75,
63 L.Ed.2d 639 (1980)

We also believe the initial stop of Mr. Gallegos was justified as a valid
noninvestigatory stop. In King, we stated:
police officers are ... expected ... to exercise what the Supreme Court has
termed "community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute." In the course of exercising this noninvestigatory function, a police
officer may have occasion to seize a person, as the Supreme Court has defined
the term for Fourth Amendment purposes, in order to ensure the safety of the
public and/or the individual, regardless of any suspected criminal activity....
The fact that the officer may not suspect the individual of criminal activity does
not render such a seizure unreasonable per se as Terry only requires "specific
and articulable facts which ... reasonably warrant [an] intrusion" into the
individual's liberty.
990 F.2d at 1560 (citations omitted).
In the case at bar, Sergeant Lofgren and Officer Santos observed a distraught
Mr. Gallegos on a public sidewalk in the middle of the night. Not only did he
smell of alcohol, but he was crying and walking down the street with his hands
over his face. In light of these facts, we believe the officers were justified in
stopping Mr. Gallegos to check on his welfare. Thus, the initial stop of Mr.
Gallegos was valid under both an investigatory and noninvestigatory rationale.

Mr. Gallegos also contends the trial court did not apply the correct legal
standard for determining the reasonableness of a seizure under the Fourth
Amendment. Mr. Gallegos appears to argue the trial court improperly
determined the stop was reasonable because the officers were merely

suspicious of Mr. Gallegos' behavior. Having conducted a de novo review of

this contention, see King, 990 F.2d at 1556, we believe a fair reading of the
trial court's summary judgment order indicates the trial court employed the
correct legal standard and properly determined the stop of Mr. Gallegos was
supported by a reasonable suspicion that "criminal activity was afoot." See
Terry, 392 U.S. at 30, 88 S.Ct. at 1884. In any event, our determination that the
stop of Mr. Gallegos was supported by a reasonable suspicion that Mr.
Gallegos was engaged in criminal activity renders irrelevant Mr. Gallegos'
challenge to the legal standard employed by the trial court
6

Although the middle of the street was not the most prudent location to bring the
defendant to the ground, we do not believe the location renders the action
unreasonable. "The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving." Graham v.
Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989).
Here, Mr. Gallegos entered the center of the road on his own volition. While in
the road, he clinched his fists and faced the officers in a crouched position. In
light of his increasing aggressiveness, the officers made an instant decision to
gain control over him before the situation could escalate. In light of the totality
of the circumstances, we find the officers' decision to be reasonable. It would
make no sense for this court to require the police to wait for a suspect to leave
the street before exercising force against the suspect. Such a rule would place
the welfare of peace officers at an even higher risk of danger than they are
already subject to on a daily basis

We note the fact Sergeant Lofgren intended to arrest Mr. Gallegos after he was
taken down on the pavement did not turn the Terry stop into an arrest.
Although an officer's subjective intent is a factor that may be considered in
determining whether a stop has escalated into an arrest, see United States v.
Serna-Barreto, 842 F.2d 965, 967 (7th Cir.1988); United States v. Morin, 665
F.2d 765, 769 (5th Cir.1982); United States v. White, 648 F.2d 29, 34
(D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981),
subjective intent is not determinative. Serna-Barreto, 842 F.2d at 968. In fact,
some circuits appear to give little or no weight to an officer's subjective intent.
See United States v. Jackson, 652 F.2d 244, 250 (2d Cir.), cert. denied, 454
U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981) (objective factors rather than
subjective factors govern propriety of stops and arrests; officer's subjective
belief that his partner had placed suspect under arrest insufficient to convert
Terry stop into arrest); United States v. Beck, 598 F.2d 497, 500 (9th Cir.1979)
(whether arrest has occurred depends on evaluation of all surrounding
circumstances, not the subjective intent of officers involved). Here, based on
the totality of the circumstances, we conclude the detention of Mr. Gallegos

was a valid Terry stop that did not escalate into an arrest
8

Because we find the arm bar maneuver and subsequent take-down of Mr.
Gallegos was based on a reasonable perceived threat to the officer's safety, we
conclude these procedures satisfy the second prong of the Terry inquiry, see
supra, p. 19, 88 S.Ct. at 1878-79, and were reasonable under the Fourth
Amendment